This Week's Attitude

Reforms Needed If Death Penalty Remains Sentencing Choice

By Neil S. Friedman

By Neil S. Friedman

The debate over the death penalty is alive and well, even as the latest surveys show that about two-thirds of Americans support capital punishment, compared to 35 years ago when that figure was barely a majority. The United States is one of the few industrialized countries in the world that still executes criminals and opposing the death penalty used to be political suicide for most politicians. But that is gradually changing.

This week, the United States Supreme Court began hearing arguments in a Kentucky case to determine whether or not lethal injection qualifies as cruel and unusual punishment in violation of the Eighth Amendment.

In recent months, this dispute has halted executions in Florida and California. The Sunshine State reacted after it recently took 34 minutes - twice the usual time - and two injections to execute a prisoner. If the court rules the deadly three-drug cocktail is excessively painful, it could limit executions nationwide, as well as force the 37 states that still have it to rethink or even end capital punishment, once and for all, as most industrialized nations did years ago.

Years ago, most states switched from the electric chair to lethal injections, as a more humane alternative, and would likely be reluctant to restore "Old Sparky," as the former method was often referred to, if the shots are deemed cruel.

Only five states - Texas, Florida, Maryland, Missouri and California - have carried out the majority of executions in the last 31 years. Fourteen states abolished it and five others have not put anyone to death in several years. Since the Supreme Court reinstated the death penalty in 1976, there have been more than 1,000 executions. Last year, that number reached a 13-year low of 42, compared to an average of 300 from 1982-1999, while only 110 defendants were sentenced to death, another record low.

In 2004, nine years after Governor George Pataki signed the death penalty into law - a period when there were no executions - the Court of Appeals ruled New York's death penalty was unconstitutional and advised a moratorium until the legislature amended the law to make it acceptable. A year later, an assembly committee defeated an attempt to reinstate the death penalty. Since then, the state legislature has failed to make the necessary changes to satisfy the court. Therefore, the state's death penalty remains in limbo with only one man - convicted in the Wendy's restaurant slayings seven years ago - is currently on death row in New York.

As the new year began, Governor Jon Corzine signed a law making New Jersey the first state to ban the death penalty in 40 years, and ordered eight death row inmates imprisoned for life without a chance of parole. His action pinpointed a new trend about the death penalty controversy in the last decade.

Due largely to new technology, fresh evidence has exonerated scores of prisoners in two dozen states, allowing them to walk out of prison, instead of walking the Last Mile to the execution chamber. Advocates argue that the death penalty deters crime, prevents recidivism and provides emotional compensation for victims' families. Opponents contend that capital punishment does not deter criminals more than life imprisonment, while it violates human rights, leads to executions of some who are wrongfully convicted and largely discriminates against minorities and the poor, whose sentences might otherwise be a life behind bars.

In the last 30 years, over one hundred prisoners in 25 states have been released from death row based on fresh evidence, including more than two dozen in the past four years. Death sentences and executions have dropped considerably since 1999, with significant reductions in all states that allow capital punishment, according to the Death Penalty Information Center.

According to a four-year-old FBI report, there were fewer murders in states that abolished the death penalty, compared with states where it exists. The report noted: "In no state has the number of murders diminished after legalizing the death penalty."

Nationwide there are thousands of prisoners awaiting execution. However, inmates usually linger on death row for 10 years or more before their sentences are carried out. Proponents of capital punishment maintain it is more expensive to keep killers in prison for life than it is to execute them, but they ignore the substantial cost to state governments of ten years of appeals - the average time between sentencing and execution.

While no system is wholly infallible, wrongful convictions - based on uncertain eyewitness identifications, questionable interrogation techniques of suspects and unqualified legal representation - may best be avoided with extensive reforms in the criminal justice system. As long as capital punishment remains a sentencing choice for certain crimes, it should be administered fairly and equitably, not arbitrarily and capriciously as it sometimes was in the past. There should be a mandatory nationwide moratorium on the death penalty to provide a window of opportunity to assure irrefutable criminal convictions.

Aside from extraordinary circumstances - such as a justified war - a civilized society that respects human rights has no compelling reason to engage in the "machinery of death," as the late Supreme Court Justice Harry Blackmun once referred to state-sanctioned capital punishment.